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SCA/7811/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7811 of 2010
=========================================================
POLITE
PROCESSORS - Petitioner(s)
Versus
PASCHIM
GUJARAT VIJ CO LTD - Respondent(s)
=========================================================
Appearance
:
MS
HETVI H SANCHETI for
Petitioner(s) : 1,
MS LILU K BHAYA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/07/2010
ORAL
ORDER
Heard
learned advocates appearing on behalf of respective parties.
In
present petition, petitioner has made prayer in Para 7 to direct the
respondent to restore electricity connection of petitioner
Customer No.33201/02914/2009.
Learned
advocate Ms. Sancheti submitted that for reconnection, specific
request in writing has been made to respondent, Page 37 dated 10th
May 2010. She submitted that in response to aforesaid application,
answer is given by respondent on 28th
May 2010 that amount cannot be accepted with objection by respondent,
because, while handing over the cheque, the amount is not mentioned
by petitioner, therefore, blank cheque cannot be accepted by
electricity company.
Learned
advocate Ms. Bhaya submitted that petitioner is having two different
electricity connections and in both cases, theft has been committed
and for that, proceedings have been initiated by respondent
electricity company against present petitioner. She submitted that
unless and until the amount, which has been found to be due in
respect to theft of electricity committed by petitioner, is not paid
by petitioner and undertaking is not given by petitioner for the
same, question of reconnection of electricity does not arise.
Learned
advocate Mr. Sancheti submitted that petitioner has not received any
supplementary bill from respondent. Apart from that, considering
complaint means FIR filed against present petitioner, Page 15, dated
19th
April 2010, it is a case of theft of electricity committed by
petitioner.
For
that, it is open for petitioner to approach Special Court under
Section 153 of Electricity Act, 2003 and direct petition to this
Court for reconnection of electricity cannot be entertained by this
Court in view of decision given by Division Bench of this Court in
case of Torrent
Power AEC Limited v. Gayatri Intermediates Pvt. Ltd.,
reported in 2006(2)
GLH 375.
The relevant observation is made at Para 14.5-B.-Theft Cases and in
Para 21, which are quoted as under :
14.5-B.
Theft Cases –
(i)
establishment of special Courts under Section 153 to try offences
punishable under Sections 135 to 139 including cases of theft of
electricity where mens rea is required to be proved. Stringent
punishments and penalties to be imposed by the Court were also
provided.
(ii) Section
154 also provided for powers of the Special Court. Sub-section (5) of
Section 154 as already enacted by the Parliament specifically
provided that the Special Court constituted to try cases of theft of
electricity may determine the civil liability at a rate equivalent
to an amount not less than two times the tariff applicable to the
concerned consumer and that too for a maximum period of 12 months.
The
Legislature had thus already provided two separate machineries for
cases of unauthorised use of electricity even in absence of mens rea
on the one hand and cases of theft with mens rea on the other hand.
Genuine
and serious difficulty arose because even while Section 54(5)
empowered the Special Court to determine civil liability in theft
cases at the rate of two times the applicable tariff for a period of
twelve months prior to the date of detection (over and above the fine
at three times the amount of financial gain on account of theft),
Section 50 of the Act empowering the State Electricity Regulatory
Commission to frame the State Electricity Supply Code to provide for
recovery of electricity charges, disconnection of electricity for non
payment and tampering did not specifically provide for the power of
the Commission to prescribe as to how the licensee could make
assessment in theft cases. The order dated 8th June 2005
of the Central Government under Section 183 of the Act has removed
the difficulty by providing that the Electricity Supply Code may also
provide for the method of assessment of electricity charges payable
in case of theft of electricity pending adjudication by the proper
Court. The said order dated 8th June 2005 and Amended
Regulation (Section 7.6.5) of the Electricity Supply Code with effect
from 14th December 2005, providing for assessment in theft
cases at the rate of two times of the tariff rates applicable subject
to adjudication by the Special Court for a maximum period of twelve
months are quite in conformity with the basic scheme embodied in the
existing provisions of the Electricity Act, 2003. We, therefore, do
not find that the said Order dated 8the June 2005 or Amended
Regulation 7.6.5 confer additional powers running contrary to the
scheme of the parent Act as contended on behalf of the petitioners.
21. To
sum up then, our conclusions are as under:-
(i) The
Electricity Act, 2003 (except Section 121) was brought into force by
the Central Government on 10th June 2003, but in the State
of Gujarat, its provisions came to be applied with effect from 10th
December 2003.
[Para
19.1]
(ii) Although
the terms of license issued in favour of the AEC and the GEB under
the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948
and the Conditions of Supply and Miscellaneous Charges framed by the
said licensees under the said Acts continued to be operative till
9.12.2004, thereafter with effect from 10.12.2004, the distribution
licenses in favour of those licensees continue to operate subject to
their being in accordance with the provisions of the Electricity Act,
2003. [Paras 19.3 and 20.2]
(iii) Challenge
to the legality of the Central Government order dated 8th
June 2005 removing difficulties with reference to the powers of the
State Electricity Regulatory Commission under Section 50 of the Act
and to the subsequent amendment dated 14th December 2005
to Regulation (Section) 7.6.5 of the Gujarat State Electricity Supply
Code is turned down. [Para 14]
(iv) The
Electricity Act, 2003 read with the Central Government order dated
8th June 2005 and the State Electricity Supply Code framed
under Section 50 of the Act as amended with effect from 14th
December 2005 and the Statutory Regulations framed under the other
provisions of the Act constitute a complete self-contained code in
respect of criminal as well as civil liability in cases of theft of
electricity and also in respect of the civil liability for
unauthorised use of electricity. [para 16]
(v) Assessment
to be made by the distribution licensee in theft cases is not
governed by the provisions of Section 126 of the Act, but is governed
by the provisions of Section 50 read with Regulation (Section) 7.6.5
of the Gujarat State Electricity Supply Code, 2005 as framed by the
Gujarat Electricity Regulatory Commission and amended with effect
from 14th December 2005.
[paras
9 and 12]
(vi) Against
such assessment, remedy of appeal under Section 127 of the Act is not
available to the aggrieved party, but its remedy will be only before
the Special Court constituted under Section 153 of the Act which will
exercise its jurisdiction in accordance with the provisions of
sub-sections (5) and (6) of Section 154 of the Act. [Para 9]
(vii) Although
there is no specific provision in Section 145 of the Act for
exclusion of jurisdiction of Civil Court to entertain any proceeding
in respect of any matter which the Special Court is empowered by or
under the Act to determine, we are of the view that any dispute about
civil liability in theft cases is impliedly excluded from the
jurisdiction of Civil Court. [Paras 15 to 17]
The
aforesaid principles are applicable to all cases wherein theft is
detected on or after 14th December 2005.
In
view of these facts, petitioner is having alternative effective
statutory remedy under the provisions of Section 153 of Electricity
Act, 2003, therefore, this petition is not entertained by this Court
only on that ground. Accordingly, present petition is disposed of
without expressing any opinion on merits.
It
is open for petitioner to approach Special Court under Section 153 of
Electricity Act, 2003.
As
and when such request will be made by petitioner to Special Court,
let Special Court may consider it and decide it as early as possible.
[H.K.
RATHOD, J.]
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